THE CHALLENGE OF CHANGE: THIRTEEN YEARS OF CONSTITUTIONAL DEMOCRACY IN

Unrevised text of John Foster and Miriam Rothschild Memorial Lecture London, 23 October 2007

Kate O’Regan Judge of the Constitutional Court South Africa

In his memorable judgment in the matter in which the Constitutional

Court declared the death penalty to be unconstitutional, , former Chief Justice spoke of the new South African

Constitution in the following terms:

“All constitutions seek to articulate, with differing degrees of

intensity and detail, the shared aspirations of a nation; the values

which bind its people; and which discipline its government and its

national institutions; the basic premises upon which judicial,

legislative and executive power is to be wielded; the constitutional

limits and the conditions upon which that power is to be exercised;

and the moral and ethical direction which that nation has identified

1 for its future. In some countries, the constitution only formalises,

in a legal instrument, a historical consensus of values and

aspirations evolved incrementally from a stable and unbroken past

to accommodate the needs of the future. The South African

Constitution is different: it retains from the past only what is

defensible and represents a decisive break from and a ringing

rejection of that part of the past which is disgracefully racist,

authoritarian, insular and repressive, and a vigorous identification

of and commitment to a democratic, universalistic, caring and

aspirationally egalitarian ethos, expressly articulated in the

Constitution. The contrast between the past which it repudiates

and the future to which it seeks to commit the nation is stark and

dramatic. …. What the Constitution expressly aspires to do is to

provide a transition from [the] grossly unacceptable features of the

past to a conspicuously contrasting:

‘future founded on the recognition of human rights, democracy and

peaceful co-existence and development opportunities for all South

Africans, irrespective of colour, race, class, belief or sex.’”1

The powerful message of this passage is that the South African

Constitution is a transformative document first which recognises that our

1 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at para 262.

2 society needs to change in fundamental way and second which articulates the values which are to guide the process of transformation. It is thirteen years since constitutional democracy dawned in South Africa. Thirteen years in which constitutional democracy has been taking root; and in which a strong form of judicial review has been undertaken by the

Courts. My purpose this evening is to describe to you the role the courts, and particularly the Constitutional Court, plays in this new constitutional order. In so doing, I am aware that in the United Kingdom there is an ongoing debate about constitutional reform and I have selected five issues that may have some resonance for that debate. I should emphasise however that the South African constitutional experience is unique; rooted in our own history of colonialism, racism and oligarchy and my purpose is not to suggest that the South African approach should be adopted here or elsewhere.

To me the real strength of understanding other societies and their constitutions (and indeed the South African Constitution permits courts when interpreting its Bill of Rights to look at foreign law),2 is that it often liberates one from the habits and assumptions of one’s own training and experience. It can facilitate the identification of strengths and weaknesses in one’s own system, and enable one to see more clearly the

2 Section 39(1) of the Constitution. Insert text.

3 structural constraints that historical antecedents and present conditions impose. In so doing, it allows us to imagine different ways of being both democratic and respectful of human rights –the twin obligations of the modern state (to me at least).

The five issues I have identified are the following:

o How was our Constitution drafted?

o What role do the courts, and particularly the new Constitutional

Court play under the new Constitution and what is the

constitutional relationship between the courts and the other arms of

government: the legislature and the executive?

o How does our Constitution approach the problems of a diverse

society?

o There are two important novelties in the South African Bill of

Rights: imposing obligations on private citizens; and the

entrenchment of social and economic rights. How has the Court

approached these and what contribution do they make to South

African democracy?

4 o How are judges appointed and in making appointments why does

our Constitution require that the judiciary needs “to reflect broadly

the racial and gender composition” of South African society?3

I The process of constitutional change

How was the South African Constitution drafted?4 The process which culminated in our Constitution commenced in the 1990 with the release from prison of the leaders of the liberation movements, the African

National Congress and the Pan-Africanist Congress. Four years of intense negotiations followed, which resulted, initially in deadlock. The liberation movements wanted a Constitution drafted by a democratically elected constituent assembly. The National Party government wanted a constitution drafted by negotiation prior to the first elections. Finally, it was agreed that a two-stage process to constitutional and political reform would be followed. A temporary or interim Constitution was negotiated and enacted by the minority government. In terms of the interim

Constitution, elections would be held to elect a new Parliament.

The newly elected Parliament would have two roles: the first was as national legislature; and the second was as a Constitutional Assembly

3 Section 174(2) of the Constitution. 4 Some of this section of the speech draws on a speech I delivered at Trinity College Dublin in April 2000 and since published as “Cultivating a Constitution: Challenges facing the Constitutional Court in South Africa” (2000) 22 Dublin University Law Journal 1 – 18 especially from 3 – 7.

5 responsible for drafting a new Constitution. The fears of the National

Party were met however by an agreement that the new Constitution would comply with certain constitutional principles agreed before 1994 and annexed as a schedule to the interim Constitution. It was agreed that a new Constitutional Court would be established which would have the duty of determining whether the new Constitution adopted by the

Constitutional Assembly complied with the 34 constitutional principles set out in the interim Constitution. This compromise was the genesis of the Constitutional Court: it was to be established to decide if the new

Constitution was indeed constitutional!

The constitution-making process involved a high degree of public participation. Right from the start, key figures in the process identified the need to draw the public in. Cyril Ramaphosa speaking on 24 January, shortly after the Assembly was convened, stated:

“It is therefore important that as we put our vision to the country,

we should do so directly, knowing that people out there want to be

part of the process and will be responding because, in the end, the

drafting of this Constitution must not be the preserve of the 490

members of this Assembly, it must a constitution which they feel

they own, a constitution that they know and feel belongs to them.

6 We must therefore draft a constitution that will be fully legitimate,

a constitution that will represent the aspirations of our nation.”5

Ramaphosa was right. If, as Ismail Mahomed says, a Constitution is not merely a legal document but is a charter which identifies the shared aspirations of a nation and its common values, a process of public participation is essential.

Consulting the public in any society is never an easy task. In South

Africa, a society of more than 40 million people, many of whom live in poverty in rural areas, many are not fully literate, and have only irregular access to print or electronic media, it is daunting indeed.6 The approach adopted by the Constitutional Assembly was multi-faceted.

Advertisements were placed in the print and broadcast media calling for submissions to the Constitutional Assembly. In excess of 1,7million submissions were received, the bulk of which were petitions on discrete issues. In addition, a series of public meetings were held throughout the

Republic: attended by more than 20 000 people and 717 organisations.

Of these meetings, Hassen Ebrahim, the executive Director of the

Constitutional Assembly said:

5 Cited in Hassen Ebrahim The Soul of a Nation: constitution-making in South Africa 1998 p 239. 6 The difficulties are vividly described in Ebrahim Id 241.

7 “The public meetings held were extremely successful: discussions

were lively, ideas original and the exchange of views appreciated.

These meetings also served to highlight the point that constitutions

are about basic values affecting society and should be understood

by even the least educated. It was a humbling experience to realise

that constitutional debates and issues are not only the domain of the

intellectual elite, but that they belong to everyone.”7

In addition, there were television and radio programmes broadcast to air the key issues under negotiations. By and large, these programmes were structured as discussions between members of the Constitutional

Assembly and members of civil society on issues under consideration in the Assembly such as the bill of rights, the separation of powers, the national anthem and flag, traditional leaders and the death penalty.

An internet site was also created which contained a database of all the information produced by the Constitutional Assembly, including minutes, drafts, opinions and submissions. It was early days for the internet, especially in South Africa, but the site was very popular. The material on the site is currently being recaptured and indexed and it is hoped that it

7 Id at 245.

8 will soon be available on the Constitutional Court website www.constitutionalcourt.org.za.

How successful was the process of public participation? That is difficult to evaluate. Its purpose was clearly twofold: a substantive one to allow members of the public to affect the actual provisions of the Constitution itself; and a process-based one, rooted in a conception of democracy which is participative rather than merely representative. No work has been done as far as I am aware on the extent to which the process of public participation affected the actual text of the Constitution and I cannot helpfully speculate on it. Perhaps there is an interesting Ph.D thesis to be written there.

And what of the process purpose of public participation? Independent market research at the time revealed that the campaign for public participation reached as many as 65% of South Africans. The same research makes it clear that many members of the public were sceptical about the call for public participation.8 Yet the sheer number of submissions received and the extent of participation in public meetings suggested that there was great interest and significant involvement in the process.

8 See Hassen Ebrahim

9

It is perhaps worth noting here that negotiated change has had to take place in many walks of South African life. Local government, for example, had been racially divided under with each town having separate municipal councils based on race. In each municipal area, negotiations had to take place to arrange for the manner in which the separate councils would merge. Similarly, many public organisations from school boards, to sporting codes have had to renegotiate their ground rules of their organisations. These processes were often conflictual at first, but by and large through compromise and negotiation, solutions to apparently intractable problems were reached.

Not surprisingly, then, inclusive processes that emphasise participation have become important values of our new constitutional democracy.

They are widely accepted ground rules in many walks of South African life. And I think there can be no doubt that the public participation process around the Constitution contributed to this.

The importance of participation in law-making processes is also given expression in a wide variety of constitutional provisions. For example, the new Constitution requires both houses of Parliament to “facilitate

10 public involvement” in their legislative and other processes.9 Recently, in two cases, the Constitutional Court had to interpret these provisions.

Relying extensively on international law, a majority of the Court held that the provisions require Parliament to act reasonably to facilitate public involvement in law-making. If Parliament unreasonably fails to do so, the consequence may be that the legislation enacted will be invalid, though any order of invalidity, will ordinarily be suspended to enable Parliament to adopt a reasonable process to facilitate public involvement. The Court was clear that Parliament’s view of what would constitute reasonable facilitation of public involvement would be respected by the Courts.10 As

Justice Ngcobo said in his judgment:

“… the duty to facilitate public involvement must be construed in

the context of our constitutional democracy, which embraces the

principle of participation and consultation. Parliament and the

provincial legislatures have broad discretion to determine how best

to fulfil their constitutional obligation to facilitate public

involvement in a given case, so long as they act reasonably.

Undoubtedly, this obligation may be fulfilled in different ways and

is open to innovation on the part of the legislatures. In the end

9 See sections 59(1) and 72(1) of the Constitution (insert text). 10 See Doctors for Life International v The Speaker of the National Assembly and Others 2006 (6) SA 416 (CC) at ; and Matatiele Municipality and Others v President of the RSA and Others 2007 (1) BCLR 47 (CC).

11 however, the duty to facilitate public involvement will often

require Parliament and the provincial legislatures to provide

citizens with a meaningful opportunity to be heard in the making of

the laws that will govern them. Our Constitution demands no

less.”11

The second of these two cases concerned a controversial decision by

Parliament to amend the boundaries of the KwaZulu-Natal and Eastern

Cape provinces with the effect that the municipality of Matatiele was shifted from KwaZulu-Natal to the Eastern Cape. In order for this decision to be made, as the amendment affected them specially, the

Eastern Cape and KwaZulu-Natal provincial legislatures had to approve the amendment. In deciding to approve the amendment, the KwaZulu-

Natal legislature did not facilitate public involvement at all. This the

Court held not to be reasonable and therefore in breach of the provincial legislature’s constitutional obligation to facilitate public involvement.

The amendment was declared invalid, suspended for eighteen months and sent back to Parliament for the matter to be rectified. The case illustrates that the conception of democracy adopted in our Constitution is not purely representative but has important participate elements. So the product of constitution-making, our Constitution, identifies the value of

11 Doctors for Life at para 145.

12 process in public decision-making; a value that was observed in the process of constitution-making itself.

II The role of the Constitutional Court: Fostering a democracy based on public reason

The Constitutional Court is the final court of appeal in constitutional matters. Although somewhat resistant to precise definition, a constitutional matter is a matter that involves the interpretation or enforcement of a provision of the Constitution. Given the scope of the

Bill of Rights in our Constitution, the range of constitutional matters is far broader than it would be were the Bill of Rights to be less expansive.

The Constitution provides for what can be called a strong form of judicial review, something that to those reared in a system committed to parliamentary sovereignty, often seems an alarming prospect.

Right at the beginning, the Constitution declares that the Constitution is

“the supreme law of the Republic” and “law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled”.12 The corollary of this is that a court, “when deciding a constitutional matter within its power” must declare law or conduct that is inconsistent with the

12 Section 2 of the Constitution.

13 Constitution to be invalid to the extent of its inconsistency.13 The

Constitution then provides that the court may, in addition, make any “just and equitable” order including an order suspending the order of invalidity for any period and on any conditions to allow the competent authority which may be Parliament or a provincial legislature or an administrator an opportunity to correct the defect. The court may also limit the retrospective effect of the order of invalidity.

The special role of the Constitutional Court is recognised by a rule that an order of constitutional invalidity in respect of an Act of Parliament, provincial legislation or conduct of the President, will have no force unless it is confirmed by the Constitutional Court:14 Between five and ten cases come before the Court each year for confirmation in terms of this procedure.

How often does the Court declare an Act of Parliament to be inconsistent with the Constitution? According to my records, it has happened 75 times so far: An average of just under six times a year. Interestingly, the average has not declined markedly over the period. In the first six years,

38 legislative provisions were declared to be invalid. In the following six years, 34 legislative provisions were declared invalid.

13 Section 172(1) of the Constitution. 14 Section 172(2)(a) of the Constitution.

14

It is important to realise that in many cases, the declaration of invalidity is not controversial. Indeed the rules of the Court provide that the relevant government Minister responsible for the legislation must be given notice of the challenge and afforded an opportunity to oppose it. It is not infrequent that the Minister appears only to indicate that the government does not vigorously wish to argue that the legislation is constitutional, but only wishes to make submissions as to the appropriate order to be made by the Court to regulate the effect of the declaration of invalidity.

Sometimes, of course, the declaration of invalidity is controversial particularly with the public. The leading example of this is the death penalty case that I mentioned at the outset in which the legislative provision which provided for capital punishment was declared to be inconsistent with the Constitution and invalid. The Court directed all persons sentenced to death would remain in custody until their sentences were substituted by lawful punishments.15 Similarly controversial was the order in the case of Minister of Home Affairs and Others v Fourie and

Others16 which declared section 30(1) of the Marriage Act, 25 of 1961 to be inconsistent with the Constitution and invalid because it “does not

15 S v Makwanyane 1995 (3) SA 391 (CC) at para 151. 16 2006 (1) SA 524 (CC)

15 permit same-sex couples to enjoy the status and the benefits coupled with responsibilities it accords to heterosexual couples”.17

The model of judicial review adopted in the South African Constitution gives considerable powers to courts to determine the constitutionality of legislation, and once having done so, compels a court to declare legislation inconsistent with the Constitution invalid. Yet there are other provisions in the Constitution which make it plain that the Court must listen carefully to the reasons given by the legislature and executive for enacting legislation which limits rights entrenched in the Bill of Rights.

The model of rights adjudication is therefore a two-stage model, perhaps most closely aligned (though by no means identical to) with the Canadian model.18 This means that a court when considering a constitutional challenge to legislation asks two questions: the first is does the legislation limit a right entrenched in the Bill of Rights – this exercise is by no means formal or automatic. The court has adopted a careful approach to delineating the scope of rights and a litigant bears the burden of establishing that his or her right is infringed by the legislation under attack. Should the court decide that the legislation does limit a right, the

17 Id the Order, following para 162. 18 Section 1 of the Canadian Charter of Rights and Freedoms provides that the “rights and freedoms set out … [in this Charter] are subject only to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

16 next question that will arise is whether the limitation is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.19 This affords the executive defending the constitutionality of legislation an opportunity both to lead evidence and present argument as to why the legislation is not unconstitutional.

How does the Court decide whether an infringement will nevertheless pass the test of justification? It considers whether the reason given by the government for limiting the right is sufficiently important to outweigh the impact it causes in limiting the right. This is essentially a proportionality analysis. The approach was summarised in an early decision of the Court as follows:

“In sum, therefore, the Court places the purpose, effect and

importance of the infringing legislation on one side of the scales

and the nature and effect of the infringement caused by the

legislation on the other. The more substantial the inroad into

fundamental rights, the more persuasive the grounds of justification

must be.”20

The process of limitations analysis therefore permits the Court to consider the reasons proffered by government for the legislation under attack. In so

19 Section 36(1) of the Constitution. 20 S v Bhulwana 1996 (1) SA 464 (CC) at para 14.

17 doing, it affords a government an opportunity to set out its reasons for the limitation to persuade the Court, and the broader society, of the legitimacy of both its purpose and method.

As we saw in relation to the Legislature’s obligation to public participation in the making of legislation, where the court held that the

Legislature must openly and reasonably determine the extent of public participation it will facilitate in the making of any particular law, limitation analysis requires the government to disclose its reasons for enacting legislation which has infringed the Bill of Rights. The Court then assesses whether those reasons are sufficient given the nature of the limitation of rights concerned. In a real sense, the function of the Court here is twofold: most obviously, it serves as the guardian of fundamental rights; less obviously, but as importantly, it serves to create a forum for public debate about the reasons for the exercise of power. This role carries with it a conception of democracy which requires the exercise of public power to be accountable. Again and again, our Constitution confers power upon courts to enable citizens to hold public power accountable through requiring the disclosure of reasons for the exercise of power in a public and open forum.

18 Respect for the democratic role of the legislature also infuses the exercise of the court’s remedial powers. In a country whose past was sharply defined by the absence of democracy, respect for the democratically elected arms of government is particularly important. This respect is perhaps best illustrated by a brief discussion of the case, National

Coalition for Gay and Lesbian Equality v Minister of Home Affairs, in which the Court held that the immigration legislation which made provision for heterosexual spouses of South Africans to be afforded special consideration for immigration purposes, but not homosexual life partners, was discriminatory in the light of the constitutional prohibition on discrimination on the grounds of sexual orientation. In the case, the

Court concluded that the remedial powers of the Constitutional Court included the power to read words into a statute. To non-lawyers this might sound like something of a non-event. Let me hasten to advise you that it is indeed a jurisprudential event of some magnitude. Courts around the world have accepted that severance of words from a statute or regulation is legitimate if the effect of the severance is to avoid an unconstitutional result and the statute as it remains fulfils the legislative purpose for which it was designed. Reading words into the statute to achieve the same effect has been regarded with far greater suspicion.

19 The matter arose four-square for decision in the Home Affairs case. In approaching the question, the Court sought to balance two important considerations: the first is the obligation placed upon courts to provide

“appropriate relief” for an infringement of the Bill of Rights; and the second is the separation of powers. On this, the Court reasoned as follows:

“The other consideration a Court must keep in mind is the

principle of the separation of powers and, flowing there

from, the deference it owes to the Legislature in devising a

remedy for a breach of the constitution in any particular

case. It is not possible to formulate in general terms what

such deference must embrace, for this depends on the facts

and circumstances of each case. In essence, however, it

involves restraint by the Courts in not trespassing onto that

part of the legislative field which has been reserved by the

Constitution, and for good reason, to the Legislature. ”

Underlying the decision is a fundamental respect for the democratic role of the Legislature, moderated by the recognition that this respect should not prevent courts from pursuing their own democratic role – protection of the Constitution and the provision of appropriate remedies for the infringement of rights.

20

What about the court’s relationship with the executive, and in particular

President? One of the very earliest cases before the Court concerned powers conferred upon the President by the legislation which was regulating the restructuring of local government (the Local Government

Transition Act, 209 of 1993).21 This legislation purported to confer powers on the President to amend it (the legislation) which the President purported to do in two proclamations. The empowering provision and the two proclamations were the subject of an urgent constitutional court challenge just before the first democratic local government elections were to be held. It was a tense time.

The court held unanimously though for different reasons that the empowering provision in the legislation was inconsistent with the

Constitution. A majority of nine held that the proclamations were also invalid. Because of the impending local government elections, the Court suspended the orders of invalidity for a period of a month to enable

Parliament to be recalled to attend to rectifying the legislation. That evening, 22 September 1995, President Mandela went on national television to say that he accepted the decisions of the Court, that

21 Executive Council, Western Cape Legislature and Others v President of the RSA and Others 1995 (4) SA 877 (CC).

21 Parliament would be recalled, and that the constitutional defects in the legislation and proclamations would be rectified. It was an auspicious start for the Court’s relationship with the executive.

Presidential conduct has been the subject matter of several important constitutional cases. One involved the President’s power to pardon offenders. A power which is conferred by section 84(2)(l) of the

Constitution which states that the President is responsible for pardoning or reprieving offenders and remitting any fines, penalties or forfeitures.22

The Court held that the powers enumerated in this section of the

Constitution had their origin in the prerogative powers exercised under former Constitutions (modelled in large part on the unwritten

Westminster Constitution); that the powers enumerated in the section were exhaustive and that no unenumerated prerogative powers existed under our Constitution.23 The Court then had to determine what the scope of judicial review of such powers was. The Court held that the exercise of the powers had to be consistent with the Bill of Rights, and could be reviewed on that basis and also on the basis of mala fides.24

22 The equivalent provision in the interim Constitution was section 82(1)(k). It was this provision which was under consideration in President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC). 23 Hugo at para 8. 24 Id at paras 28 – 29.

22

Recently, the Constitutional Court had to consider the dismissal by the

President of the head of the National Intelligence Services.25 The

Constitution provides that the President, as head of the national

Executive, appoints the head of National Intelligence but it is silent on the question of who has the power of dismissal. A majority of the Court held that the constitutional power to appoint the head of the NIA, necessarily implied the power to dismiss as well. The majority also found that if, in dismissing the head of the NIA, the President breached the contract of employment between the government and the head of the NIA, contractual remedies would flow. In this case, as the head of the NIA had been appointed for a fixed term of three years, and as the Court found that no ground sufficient to warrant the summary termination of his employment had been established by the President, the head of the NIA should be paid out all benefits due to him in terms of his contact of employment. A minority of the Court held that the Presidential power to appoint implied a requirement of procedural fairness that had not been honoured in the case and concurred in the relief proposed by the majority.

What is clear from the above is that the conduct of the executive is subject to constitutional review by the Court. The Court is respectful of

25 Masetlha v President of the RSA and Another CCT 01/07 as yet unreported judgment of the Court dated 3 October 2007.

23 and sensitive to the proper constitutional role of the Executive, but also mindful of its obligations to uphold the Constitution and protect the rights in the Bill of Rights.

III “South Africa belongs to all who live in it, united in our diversity” proclaims the Preamble to our Constitution. What is the role of the

Courts and the Bill of Rights in realising this goal? The challenge posed by the principle arises in a variety of different arenas: traditional leaders and customary law; religious and cultural practices and the rights of non- citizens. The Court has had cases in all these areas. Tonight I only have time to discuss two. The first concerns customary law; and the second cultural and religious practices in schools.

As a matter of social practice, traditional leaders still play an important part in South African public life, particularly in the rural areas, and so does customary law. Our democratic Constitution recognises traditional leadership and confirms that “the institution, status and role of traditional leadership, according to customary law, are recognised subject to the

Constitution.”26 It also provides that the courts must apply customary law when that law is applicable, subject to the Constitution.27

26 Section 211(1) of the Constitution. 27 Section 211(3) of the Constitution.

24 The most important case to date where the Court has had to consider customary law was the case of Mrs Bhe.28 She came to court seeking relief on behalf of her 7 and 10-year old daughters. The father of the children, Mr Maboyisi Mgolombane died intestate in October 2002. He had been a carpenter and she a domestic worker and they lived together in an informal home in the giant township of Khayelitsha just outside Cape

Town. Upon Mr Mgolombane’s death, his father was declared sole heir in the deceased estate according to the customary principle of male primogeniture, Mr Mgolombane having no surviving male children. The father intended to sell the family home in order to cover funeral expenses which would have left Ms Bhe and the two young girls homeless. With the assistance of a local organisation, Ms Bhe launched a constitutional challenge to the customary law rule of male primogeniture which reached the Constitutional Court in 2004.

Speaking on behalf of the majority, Chief Justice Langa held that:

“The exclusion of women from inheritance on the grounds of

gender is in clear violation of … the Constitution. It is a form of

discrimination that entrenches past patterns of disadvantage among

a vulnerable group, exacerbated by old notions of patriarchy and

28 Bhe and Others v Magistrate, Khayelitsha and Others 2005 (1) SA 563 (CC).

25 male-domination incompatible with the guarantee of equality under

our constitutional order.”29

The Court thus declared that the rule of male primogeniture in customary law was inconsistent with the Constitution to the extent that it excludes women or extra-marital children from inheriting property.

The message of the Bhe case, based on the express text of the

Constitution, is that customary law is to be recognised as an important system of law in our society. Yet, like all laws in our legal system, it is subject to the Constitution and the Bill of Rights and, in this case, was held to be inconsistent with the right to be free from unfair discrimination. This is the first important principle of the constitution’s protection of diversity in our society: it embraces the pluralist character of our society but on express terms: the fundamental rights entrenched in the Constitution may not be impaired by any community or culture.

The second case that is illustrative of the approach to diversity in our constitutional framework is the case of Sunali Pillay, decided only several weeks ago.30 Miss Pillay was a fifteen year old student at a public school

29 Id at para 91. 30 MEC for Education, Kwa Zulu Natal and Others v Pillay CCT 51/06 as yet unreported judgment of the Constitutional Court, handed down 5 October 2007.

26 for girls in Durban. The school had a code of conduct which provided for a school uniform and which prohibited the wearing of jewellery at school, save for ear-studs (at the same level), watches and medic-alert bracelets.

Miss Pillay’s family came originally from southern India and some of the women in her family had a tradition of wearing a nose stud which is a widespread cultural and religious practice in Hindu communities in southern India. Contrary to the school rules, Miss Pillay had her nose pierced and started wearing a tiny nose study to school. The school objected but gave her three months grace to allow the piercing to settle and then told her that she would have to remove the stud. When Miss

Pillay did not do so, the school asked her and her mother to explain on what basis they sought an exemption from the school’s uniform code.

Her mother explained that:

“It is a time-honoured family tradition. Sunali and I come from a

South Indian family that has sought to maintain a cultural identity

by respecting and implementing the traditions of the women before

us. Usually, a young woman would get her nose pierced upon her

physical maturity (the onset of her menstrual cycle) as an

indication that she is now eligible for marriage. While this

physically oriented reasoning no longer applies, we do still use the

tradition to honour our daughters as responsible young adults.”

27

After consulting experts on Hindu religion and culture, the school decided that this reasoning did not warrant an exemption to be made and proceeding with school disciplinary hearings against Ms Pillay who then approached the Equality Court. The matter wound its way through the court system to the Constitutional Court which by a majority upheld Ms

Pillay’s claim. In the end result, although the Court was divided on the precise order, the principle that underlay both judgments was the principle that under our Constitution, diversity must not only be tolerated but fostered.

IV Two South African novelties: horizontality and socio-economic rights

Time does not permit a full consideration of these two aspects of the

South African Bill of Rights. I shall describe them only briefly.

The Bill of Rights binds the legislature, the executive, the judiciary and all organs of state.31 The latter is widely defined to include all departments of state in the national, provincial and local spheres of government; and any other functionary or institution exercising a public power or performing a public function in terms of the Constitution, or any

31 Section 8(1) of the Constitution. See also section 7(2) which provides that the “state must respect, protect, promote and fulfil the rights in the Bill of Rights.”

28 legislation.32 But the Bill of Rights also provides, somewhat enigmatically, that “a provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and any duty imposed by the right”.33

This provision thus provides that the Bill of Rights imposes obligations not only on government, but also on citizens. This aspect of our

Constitution is often loosely referred to as its “horizontal effect”: The obligation on government being seen as “vertical”. The answer to the question of what the phrase “when it is applicable” means is yet to be fully answered by the Court. Nevertheless, on several occasions the court has made it plain when developing the common law that the rights in the bill of rights must inform that development. One provision of the Bill of

Rights expressly provides that the rights bind private citizens and that is the equality clause which states that “No person may unfairly discriminate directly or indirectly against anyone on one or more grounds

…”.34

32 See section 239 of the Constitution. This definition may be of interest in the light of the recent decision of the House of Lords in YL (by her litigation friend the Official Solicitor) (FC) (Appellant) v Birmingham CC and others [2007] UKHL 27. 33 Section 8(2) of the Constitution. 34 Section 9(4) of the Constitution.

29 In a sense, therefore, our Bill of Rights is a Bill of Rights and Obligations or responsibilities for citizens. It remains yet to be seen how the obligations imposed upon private individuals will be enforced. What is clear already is that when a court develops the common law, for example, libel law (or defamation as we call it), the court must consider the obligations imposed by the Bill of Rights. In the case of libel, this involves several rights: freedom of expression on the one hand and the rights to dignity and privacy on the other. The Court has had to consider these rights in developing the rules of common law liability. What is plain, however, is that our Constitution does not carry a notion that one forfeits one’s rights entirely if one does not observe one’s obligations. So, in Makwanyane, sentenced prisoners were entitled to invoke their right to life35 and their right to be free from cruel, inhuman or degrading punishment.36

The second novel aspect of the South African Constitution is its firm entrenchment of social and economic rights. Rights that are protected are the right of access to adequate housing,37 to a basic education,38 the right of access to health care services, sufficient food and water, and social

35 Section 11 of the Constitution: “everyone has the right to life”. 36 Section 12(1)(e) of the Constitution” Everyone has the right … not to be … punished in a cruel, inhuman or degrading way.” 37 Section 26 of the Constitution. 38 Section 29 of the Constitution.

30 security.39 Apart from education, the format of the rights is similar so in the case of housing the right provides:

(1) Everyone has the right to have access to adequate housing.

(2) The state must take reasonable legislative and other measures,

within its available resources, to achieve the progressive realisation

of this right.

In including such rights within the Bill of Rights, South Africa went beyond the conventional terrain of a Bill of Rights. Most domestic rights instruments protect civil and political rights, such as the right to freedom of expression and association. Few protect social and economic rights directly. However, a distinction between civil and political rights on the one hand and social and economic rights on the other was not followed when the Universal Declaration of Human Rights was adopted by the

General Assembly of the United Nations in 1948.

Indeed, in a recent fascinating book,40 Cass Sunstein has suggested that a key reason for the inclusion of both civil and political rights, as well as social and economic rights, was Franklin D Roosevelt’s insistence that the two were inter-related. FDR’s famously identified four essential

39 Section 27 of the Contitution. 40 Cass Sunstein The Second Bill of Rights: FDR’s Unfinished Revolution and why we need it

31 human freedoms:41 freedom of speech, freedom to worship God in one’s own way, freedom from want and freedom from fear. This led him to draft what he called “the second Bill of Rights’ which contained social and economic rights.

As a matter of normative desirability too, there is no difference between social and economic rights and civil and political rights. The desirability of ensuring that all citizens receive basic education, are properly housed, have access to food, clean water and health care is not, I think, a controversial one. Indeed, social and economic rights are in some sense anterior to civil and political rights. The basic needs of human beings to shelter, nutrition and clothing need to be met before a lively interest in freedom of expression and association arises. It is for this reason that many international documents acknowledge the indivisibility and interdependence of social and economic rights on the one hand and civil and political rights on the other.

In the South African context, however, the inclusion and protection of social and economic rights in the Constitution had great significance.

The real effect of centuries of colonialism, followed by decades of

41 President Franklin D Roosevelt Address to Congress January 6, 1941.

32 apartheid has been the impoverishment of Black South Africans and the correlative enrichment of white South Africans. Our society is one of the most unequal in the world, and one in which the colour of one’s skin remains a strong predictor of socio-economic status. Unless the basic needs of food, housing and education are met, civil and political rights may seem mere luxuries, and might have carried the message tha the

Constitution contained a charter for whites and the wealthy while remaining oblivious to the needs of Black South Africans who had been historically dispossessed and excluded.

The real challenge in entrenching social and economic rights, however is to determine the scope of their justiciability. There is a widespread view amongst politicians and lawyers that civil and political rights, on the one hand, and social and economic rights, on the other, are in some significant way conceptually different. Social and economic rights have been labelled “second generation” rights while civil and political rights are considered “first generation”. (I might point out that this categorisation seems to me to be back-to-front – if food, water, and housing are indeed anterior as a matter of lived experience to civil and political rights, should they not be the first?)

33 The challenge is a complex one. I would like to make only three points.

The first is that both civil and political rights, and social and economic rights may impose an obligation upon the government that is essentially negative in character. Do not limit my right to free speech. Do not evict me from my home. Enforcement of the negative obligations that rights impose, are rarely controversial or difficult, whether the right concerned is the right of freedom of expression, or the right of access to housing.

The justiciability of both, however, becomes more difficult when one has to consider whether the right not only imposes a negative obligation, but also a positive one. Does the state have a duty to make it possible for people to exercise their right of freedom of expression? Does the state have a duty to provide everyone with a house? Our intuitive anxiety about the justiciability of social and economic of rights largely arises from our assumption that they primarily impose positive obligations upon government. And it is not different to the difficult questions that arise in the context of positive obligations that arise in respect of civil and political rights, whether it is the right to vote, or the right to reasonable accommodation in disability law.

The South African Constitution helps to answer this question in relation to most of the social and economic rights by delineating quite carefully

34 the extent of the positive obligation upon the state. So section 26(2) of the Constitution states: “the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right”. I probably don’t need to highlight the word

“reasonable” in the section to you. It is indeed the key to the Court’s approach to the justiciability of social and economic rights.

In the nevirapine case,42 in which the government proposed to establish only two sites per province for nevirapine to be provided to HIV positive pregnant mothers, the question was whether that constituted a reasonable measure to achieve the right of access to health care. Given that the manufacturers of the medication were furnishing it to the government for free, and given that it was clear, that the government had capacity to establish testing and counselling centres in excess of two per province, and given the World Health Organisation assessment of the value of nevirapine in reducing mother to child transmission of HIV, the court held that the government’s plan was not reasonable. The order the Court made was:

“It is declared that sections 27(1) and (2) of the Constituion require

the government to devise and implement within its available

resources a comprehensive and co-ordinated programme to realise

42 Minister of Health and Others v Treatment Action Campaign and Others (2) 2002 (5) SA 721 (CC) at para 135.

35 progressively the rights of pregnant women and their newborn

children to have access to health services to combat mother-to-

child transmission of HIV.

The programme to be realised progressively within available

resources must include reasonable measures for counselling and

testing women for HIV, counselling HIV-positive pregnant women

on the options open to them to reduce the risk of mother-to-child

transmission of HIV, and making appropriate treatment available to

them.”

The court went on to declare that the current policy fell short of compliance with this declaratory order and government was ordered:

“without delay to remove the restrictions that prevent Nevirapine

from being made available for the purpose of reducing the risk of

MTCT of HIV at public hospitals and clinics that are not research

and training sites…”

Finally, the court ruled –

“ … the orders made above do not preclude government from

adapting its policy in a manner consistent with the constitution if

equally appropriate or better methods become available to it for the

prevention of MTCT of HIV.”

36

The approach of the Court to social and economic rights, as the text of the

Constitution requires and consistent with its approach to its relationship with the legislature and executive in other areas is to consider whether the measures established by government in any respect of a particular right, or aspect of it, are reasonable. In considering what will be reasonable, the court said in an early case:

“Reasonableness must be understood in the context of the Bill of

Rights as a whole. The right of access to adequate housing is

entrenched because we value human beings and want to ensure that

they are afforded their basic human needs. A society must seek to

ensure that the basis necessities of life are provided to all if it is to

be a society based on human dignity, freedom and equality. To be

reasonable, measures cannot leave out of account the degree and

extent of the denial of the right they endeavour to realise. Those

whose needs are most urgent and whose ability to enjoy all rights

therefore is most in peril, must not be ignored by the measures

aimed at achieving the realisation of the right.”43

The protection of social and economic rights does not mean that every individual can come to court and demand a house. The Constitution

43 Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) at para 44.

37 requires only that government take reasonable steps progressively and within available resources to afford citizens access to housing. The court is thus serving as a public forum where government is called upon to explain its policies. This form of justiciability is as much about facilitating participative and responsive democracy, as it is about social and economic rights.

What is increasingly clear, however, is that the negative aspects of social and economic rights will provide real shields for citizens to protect them against the withdrawal of their access to health care, housing and education. So, in one case, for example, the court held that the rules for the sale in execution of houses needed to be reconceived to ensure that a court in ordering execution against immovable property would take into account the right of access to housing; and not make an order which would result in a person being rendered homeless which would be disproportionate.44 The Court reasoned that there would be circumstances in which it would be disproportionate or unjustifiable to permit execution against a home. Such was the case before the court, in which one of the applicants had purchased vegetables in an amount of approximately R190 (less than £13) and as a result of the failure to pay that debt, and an absence of any movable property to satisfy the

44 Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC) at paras 31 - 34 ; see also Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) at paras 14 – 23.

38 judgment, was at risk of her home being sold in execution of the debt.

The other applicant had borrowed R250 (less than £15) and faced the same result. The court stated:

“It is clear that there will be circumstances in which it is

unjustifiable to allow execution. …. There will be many instances

where execution will be unjustifiable because the advantage that

attaches to a creditor who seeks execution will be outweighed by

the immense prejudice and hardship caused to the debtor.”45

IV How we appoint judges and why it matters that the Bench be diverse

From what goes before, it will be clear that judges play an important and powerful role under our constitutional order, especially, but by no means only in the Constitutional Court. Not surprisingly, then, the procedure for appointment of judges under our Constitution also marks a distinct change from the past when judges were appointed by the member of

Cabinet responsible for the administration of justice (the Minister of

Justice). In 1994, for the first time, a Judicial Service Commission was established to participate in the process of the selection of judges. Its first task was to assist in the appointment of judges to the Constitutional

Court.

45 Jaftha at para 43.

39

Under the terms of the 1996 Constitution, the Commission has 23 members:46 the Chief Justice, who presides; the President of the Supreme

Court of Appeal; the Minister of Justice; one Judge President (that is a judge who presides over one of the High Courts); four practising lawyers; a professor of law; four presidential nominees and ten members of

Parliament (comprising four representatives from the National Council of

Provinces (the upper House) and six representatives from the National

Assembly – of these six, at least three must be members of the Opposition in Parliament).47

High Court judges and judges of the Supreme Court of Appeal (formerly the Appellate Division and the highest court of appeal in non- constitutional matters), are appointed by the President on the advice of the Judicial Service Commission.48 In practice, this has meant that the

Judicial Service Commission advertises vacancies and calls for nominations. The Commission then produces a shortlist of candidates whom it interviews in public (though the proceedings may not be televised). The commission then sends to the President the names it

46 Section 105 of the interim Constitution. 47 Section 178 of the 1996 Constitution. 48 See section 174(6) of the 1996 Constitution.

40 recommends for appointment. As far as I am aware, the President has never rejected a name proposed by the Commission.

When vacancies arise, the Commission calls for nominations and then compiles a short list of candidates for interview. Interviews are held in public, though they are not televised. In the case of constitutional court judges, the transcripts of the interviews of the successful candidates for the Constitutional Court are available on the Court’s website.

The Constitution itself expressly requires that a key factor for the

Commission to consider in appointing judges is “the need for the judiciary to reflect broadly the racial and gender composition of South

Africa”.49 In 1994, of 166 judges all but four were white men. Today the figure has changed significantly. The current composition of the

Constitutional Court bench is as follows: there are three women (two

Black and one White); and eight men (two White; and six Black). Our current Chief Justice is (one of the original appointments to the Court); and the Deputy Chief Justice is .

Constitutional Court judges serve a maximum period of 15 years.50

49 Section 174(2) of the Constitution. 50 Section 176 of the 1996 Constitution read with section XX of the Constitutional Court Complementary Act.

41 Why should we be concerned about the demographics of the bench?

There is an extensive literature on why it is appropriate for a judiciary to be diverse,51 but for me two reasons stand out. The first is that a diverse bench enhances the legitimacy of the judiciary in the eyes of the broader community. It is important in a diverse society that the bench is not seen to be the preserve of a particular group or elite, or this will damage the institution. Within this reason, however, lurks a danger that can be described as the siren of identity determinism. Your identity determines your judgments. If you are a black male judge, you will sympathise with a black male accused/complainant and your judgment will reflect this.

The notion extends further: if you are a black male judge, you have an obligation to see the world in a particular way; and if you do not, you are to be criticised for that. Such reasoning must be rejected vigorously.

51 Davis and Williams “Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia” (2003) 27 Melbourne University Law Review 819; Gleeson “Judicial Selection and Training: Two sides of the One Coin” (2003) 77 Australian Law Journal 591; Hale “Equality and the Judiciary: Why should we want more Women Judges” (2001) Public Law 489; L’Heureux-Dubé “Making a Difference: the Pursuit of a Compassionate Justice” (2000) International Bar Association Joint Session on “Women on the bench” 20 September 2000; Graycar “The Gender of Judgments: Some Reflections on ‘Bias’” (1998) 32 University of British Columbia 1; Nedelsky “Embodied Diversity and the Challenges to Law” (1997) 42 McGill Law Journal 91; Omatsu “The Fiction of Judicial Impartiality”(1997) 9 CJWL/RFD 1;Devlin “We Can’t Go on Together with Suspicious Minds: Judicial Bias and Racialized Perspective in R v R.D.S” (1995) 18(2) Dalhousie Law Journal 408; Graycar “Law reform: Taking Gender into Account” (1995) Paper presented at Australian Law Reform Agencies Conference Brisbane 23 September 1995; Cooney “Gender and Judicial Selection: Should there be More Women on the Courts?” (1993) 19 Melbourne University Law Review 20; Minow “Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges and Jurors” (1992) 33 William and Mary Law Review 1201; Wald “Some Real-life Observations about Judging” (1992) 26(1) Indiana Law Review 173; Mendes “‘Promoting Heterogeneity of the Judicial Mind’: Minority and Gender Representation in the Canadian Judiciary” (1991) in Ontario Law Reform Commission’s Appointing Judges: Philosophy, Politics and Practice 91; Minow “Equalities” (1991) 88 Journal of Philosophy 663; Wilson “Will Women Judges Really Make a Difference? (1990) 28(3) Osgoode Hall Law Journal 507; Sherry “Civic Virtue and the Feminine Voice in Constitutional Adjudication” (1986) 72 Virginia Law Review 543.

42 This is not to say that as human beings, judges are not products of the societies within which they live; and that their race, gender, religion, schooling and a variety of other factors have affected their beliefs and understanding of the world. But the task of judging in a democracy demands more of judges than that they merely give effect to a world-view inherited from their particular background. It demands a self-conscious appreciation of the impact of their background on their way of thinking and a conscientious attempt at all times to be impartial. In my view, the obligation of impartiality leads directly to the second important reason that our Constitution requires diversity on the bench.

In his direct and honest statement to the Truth and Reconciliation

Commission, my former colleague Justice Ackermann remarked:

“Judges who believe that they are wholly free of prejudice

delude themselves. It behoves us all to seek out rigorously,

painful as that might be, our own particular prejudices and of

whatever nature. We need to keep these constantly in mind

and to endeavour actively and persistently to counteract

them. Furthermore, we all need to understand the insidious

influence of institutional culture and to appreciate the

powerful effects of the class, social and political

43 environments in which we live and work, and the potential

that his has for making us insensitive to the context and

views of others.”52

So requiring diversity on a collegial court enables judges to interrogate their own prejudices or blind-spots. The more alike judges are, the more likely that they will mistake prejudices for simple truths; the more different they are, the more likely that they will interrogate the correctness of their assumptions. In a sense this realisation is the corollary of John Griffith’s research in his book Politics and the Judiciary53 that found that a high percentage of the British judiciary were drawn from the same background: public schools (needless to say, male public schools), Oxbridge and the Bar. If our backgrounds are the same, it is very comfortable and easy to reinforce the prejudices that such backgrounds foster.

When we are different, prejudices masquerading as “common sense” or “the ways things are” are much more likely to be uncovered. If judges are, as the South African oath of office requires, to “administer justice to all alike without fear, favour or prejudice”,54 we need to know where our prejudices lie. To me,

52 Ackermann “Submission on the Role of the Judiciary” (1998) 115 South African Law Journal 54. 53 (1981). 54 Item 6, Schedule 2, Constitution of the Republic of South Africa, 1996.

44 therefore, this second reason for diversity on the bench: the fostering of judicial self-awareness is of great importance to me as a judge. It is a constant reminder not to delude myself that I am by nature impartial. Needless to say, it is a consideration which I like to draw to the attention of my colleagues from time to time as well!

Conclusion

It is perhaps surprising given our history that courts should have been given such an important role in our new constitutional democracy. But I hope that I have illustrated tonight, neither tendentiously, nor in a manner insensitive to my own judicial role, that the role of Courts under the

South African Constitution is twofold: firstly, to protect the fundamental rights of South African citizens – not only civil and political rights, but also social and democratic rights; and secondly, to foster a process of public reason in our democracy by allowing citizens, through the process of litigation, to ask government for their reasons for the exercise of public power, which reasons are then scrutinised by the courts with careful attention to the need to protect the legitimate constitutional role of the

Legislature and Executive. The important constitutional role entrusted to the Courts should enhance the possibility of participatory and responsive government. And also continue to facilitate the transformation of our broader society. I would like to end, perhaps, surprisingly, with the words

45 of FDR in his famous four freedoms speech to which I have already referred and which I think sums up the ongoing challenge of change in the South African constitution:

“Since the beginning of our … history”, he said, “we have been engaged in change -- in a perpetual peaceful revolution -- a revolution which goes on steadily, quietly adjusting itself to changing conditions -- without the concentration camp or the quick-lime in the ditch.”55

55 President Franklin D Roosevelt Address to Congress 6 January 1941.

46